Loder and NZME Radio Ltd - 2019-006 (20 May 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Wendy Palmer
- Susie Staley MNZM
- Mike Loder
ProgrammeMike Hosking Breakfast
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that an interview broadcast on Newstalk ZB in December 2018, regarding a proposed Police seizure of military style semi-automatic weapons, was unbalanced and inaccurate. The Authority first found that a valid formal complaint had been lodged with the broadcaster (which was required before the complaint could be referred to the Authority), as sufficient information was provided by the complainant for the correct broadcast to be identified and for the broadcaster to respond to the issues raised. The Authority then determined the complaint, finding that balancing perspectives on the issue of Police seizure were presented during news items prior to and following the interview. While the Authority agreed that information conveyed during the introduction to the interview could have been made more clear by the presenter, the presenter’s statement did not amount to a material error of fact in the context of the interview as a whole. In these circumstances, the Authority found that the harm alleged did not outweigh the right to freedom of expression, and any intervention in upholding the complaint would be unreasonable and unjustified.
Not Upheld: Balance, Accuracy
 Following a news item reporting on a proposed Police seizure of military style semi automatic weapons (MSSAs), Newstalk ZB broadcast an interview with Dr Kevin Clements, director of the National Centre for Peace and Conflict Studies, who provided his views on Police seizure of MSSAs.
 The presenter introduced the interview with Dr Clements as follows:
Well, some numbers for you this morning on guns getting into the wrong hands. Over the last five years, Police have seized 170 military style semi-automatic guns that were initially sold to the public by the Defence Force…
 Later, during the interview, the presenter asked Dr Clements:
…just in terms of what happened in the nineties with the Defence Force and the sale of 2,500 semi-automatics to the public. Do we know of those 2,500 how many have actually been taken out of circulation now?
 Dr Clements then explained the difficulty of tracking these weapons, as while a gun owner is registered in New Zealand, the gun itself is not.
 The interview was broadcast at 7.38am on 17 December 2018 on Newstalk ZB.
 Mike Loder complained that the broadcast breached the balance and accuracy standards of the Radio Code of Broadcasting Practice, for the following reasons:
- The interview, which focused on gun crime, did not include any reference to gun criminals, or any comment from a shooting group, to provide balance.
- The introduction to the interview, which claimed that 170 MSSAs, originally sold to the public by the New Zealand Defence Force (NZDF), had appeared in criminal hands, was false.
- In support of this submission, Mr Loder provided extracts from an Official Information Act 1982 (OIA) response by New Zealand Police, which stated that it was known that around 2,500 L1A1 self-loading rifles were sold by NZDF in the 1980s. Around 24 of these types of rifle were linked to ‘occurrences’ detailed in the response, though Police could not be certain that these were the same rifles.
- An OIA response, relied on by the broadcaster as the source of the information presented during the interview, did not contain the figures and information broadcast.
 In his complaint, Mr Loder identified the correct date of broadcast (17 December 2018) but noted the time of broadcast as ‘1:01:00 AM’. He stated that he listened to the programme ‘on the radio’ and provided a link to the broadcast clip and corresponding article on Newstalk ZB’s website.
The broadcaster’s response
 NZME did not accept Mr Loder’s complaint as a valid formal complaint. NZME argued it was not provided with sufficient information about the broadcast, which was required in order for it to consider a complaint under the broadcasting standards regime.
 The broadcaster nevertheless went on to respond to some of the issues raised by the complainant, stating:
- The news item contained comment from the Council of Licensed Firearms Owners. A follow-up item later that morning also contained comment from the Council. The contrary views of gun owners and the gun owners’ Council were therefore contained within newsbreaks.
- The interview was broadcast in response to a news item reporting on a proposed Police seizure of MSSAs. The purpose of the interview was to canvas Dr Clements’ opinion in response to this news item, given his expertise in disarmament and arms control. As such, the interview itself was not ‘news and current affairs’, and so the accuracy standard did not apply.
- In any event, the presenter’s introduction to the interview paraphrased news items broadcast earlier that morning. Further, the figure discussed during the interview, regarding the number of guns seized, was sourced from a 2018 response to an OIA request provided by Police.
- The broadcaster further relied on a 2017 Briefing for the Minister of Police, which stated:1
Frontline Police are reporting an apparent change in the weapons of choice for gangs and organised criminal groups. In the last 12 months, high-risk firearms such as pistols, semi-automatics, MSSAs and ex-defence weapons have been seized by Police…
...[NZDF] sold some 2,500 semi-automatic firearms… to the public in 1990 before the Arms Amendment Act 19982 restricted the possession of such weapons.
- The broadcaster was entitled to rely on this information.
 NZME invited the complainant to refer his complaint to the Authority if he was dissatisfied with this outcome. Mr Loder chose to refer his complaint to us.
 Under section 6(1)(a) of the Broadcasting Act 1989 (the Act), broadcasters are required to ‘receive and consider formal complaints about any programme broadcast’.
 We have provided guidance to complainants on what is required for a complaint to constitute a ‘formal complaint’, which states a formal complaint must:2
- be in writing
- specify it is a ‘formal complaint’
- be received by the broadcaster within 20 working days of the broadcast
- include the following details:
- date of the broadcast
- time of the broadcast
- title of the programme
- channel or station which broadcast the programme
- the standards that have been breached
- an explanation of why those standards have been breached.
 Having said that, the formal complaints process is intended to operate without undue formality.3 There is no explicit requirement under the Act for the complainant to have provided the level of detail set out above, or for the complainant to have listened to or viewed the broadcast first-hand. It is sufficient that the complainant can point to the fact that the programme was broadcast and that the complaint is made within the time limits required under the Act. Accordingly, our position has previously been that if the complainant can identify the relevant broadcast, then it may be subject to a formal complaint and can be referred to the Authority.
 In this case, while the complainant did not provide all of the broadcast details set out in our guidance above at paragraph , it is clear that sufficient information was provided to the broadcaster for the correct broadcast to be identified and for the broadcaster to respond to the issues raised. In these circumstances, we consider a valid formal complaint was made to the broadcaster.
 Both parties have agreed that this complaint should be considered by the Authority. As part of this process, the parties have provided their submissions to us on the substantive issues raised by the complaint. Having found that a valid formal complaint was lodged with the broadcaster in the first instance, and given the broadcasting standards regime is intended to operate without undue formality, we therefore consider it is appropriate for us to make a finding on the substance of the complaint. Further submissions were sought from the parties prior to our decision being finalised.
 We set out our findings on the substantive issues below.
 The balance standard (Standard 8) aims to ensure that significant points of view are presented in news, current affairs and factual programmes, to enable viewers to form their own informed and reasoned opinion about controversial issues of public importance.
 Guideline 8b to the standard states that ‘no set formula’ can be advanced for the allocation of time to interested parties on controversial issues of public importance. This means that, depending on the context of the broadcast, it may be sufficient that differing viewpoints are pointed to or acknowledged, so that audiences are aware of the existence of competing arguments.
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.
 Guideline 9a to the accuracy standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
 When we consider a complaint that a broadcast has breached broadcasting standards, we first weigh the harm alleged to have been caused by the broadcast against the right to freedom of expression, of both the broadcaster to impart ideas and information, and the audience to receive that information. In this case, Mr Loder has submitted that this interview had the potential to leave audiences misled and misinformed, through the broadcast of inaccurate information and the omission of alternative viewpoints.
 Looking first at the balance standard, we consider that the broadcast discussed a controversial issue of public importance, as required under the standard.4
 We next considered whether a reasonable range of perspectives was presented for listeners, either during the programme or in other programmes within the period of current interest. This interview was clearly framed as an opportunity for Dr Clements to provide his views in response to the news item broadcast earlier that morning. This news item featured comment from the Vice-President of the Council of Licensed Firearms Owners. A news item following the interview also contained comment from the Council.
 We therefore consider listeners could reasonably be expected to be aware of alternative perspectives on the issue discussed5 and do not uphold this aspect of the complaint.
 As noted above, the accuracy standard applies only to material points of fact broadcast during news, current affairs and factual programmes. Statements of analysis, comment or opinion will not be subject to the requirements of the accuracy standard.
 First, we considered whether this interview amounted to a news and current affairs programme, taking into account what audiences would reasonably expect to be news and current affairs.6 We found that the interview canvassed a current affairs topic in response to earlier news bulletins. We therefore consider audiences would have expected this interview to amount to a news and current affairs programme.
 Further, while this interview was primarily comprised of Dr Clements’ analysis, comment or opinion in response to the news item, we accept that the interview, and particularly the presenter’s introduction to the interview, also contained factual information and figures about the seizure of MSSAs by Police.
 We agree that the presenter’s paraphrasing of the information available could have been made more clear and that the link between NZDF’s sale of MSSAs and the seizure of weapons by Police was not as concrete as the presenter’s introduction implied. On listening to the broadcast, it appears that the presenter conflated two pieces of information when paraphrasing the news items earlier that morning (see above at paragraph ):
(a) between 2014 and 2018, Police seized 173 MSSAs
(b) in 1990, NZDF sold approximately 2,500 semi-automatic firearms to the public.
 However, we do not consider that the presenter’s introduction amounted to a material error of fact under the standard. The interview as a whole focused on Dr Clements’ views around gun ownership and registration in New Zealand and the risks around the availability of MSSAs, rather than the specific sale of these weapons by NZDF. This was in response to news bulletins reporting on whether these types of weapons should be banned.
 In any event, the presenter later clarified his statement, providing further information around the sale of weapons by NZDF (at paragraph  above). Dr Clements’ response further clarified for listeners the difficulty in tracking these types of weapons to particular owners.
 We therefore do not consider that audiences would have been left materially misinformed or misled as a result of the presenter’s statement during the introduction to the interview. In these circumstances, we find that the harm alleged by the complainant does not outweigh the right to freedom of expression, and any intervention in upholding the complaint would be unreasonable and unjustified.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
20 May 2019
The correspondence listed below was received and considered by the Authority:
1 Mr Loder’s original complaint – 5 February 2019
2 NZME’s response to the complaint – 5 February 2019
3 NZME’s confirmation of ability to refer – 11 February 2019
4 Mr Loder’s confirmation of referral – 11 February 2019
5 NZME’s comments on jurisdiction – 25 February 2019
6 Mr Loder’s further comments – 27 February 2019
7 NZME’s final comments – 1 March 2019
8 Mr Loder’s final comments – 5 March 2019
9 Mr Loder’s comments on the provisional decision – 2 April 2019
10 NZME’s comments on the provisional decision – 17 April 2019
1 Briefing for the Minister of Police, 7 December 2017 at paragraph 26, page 6 and footnote 5
2 Broadcasting Standards in New Zealand Codebook, page 56
3 Section 5, Broadcasting Act 1989
4 Guideline 8a
5 Guideline 8c
6 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18